Chapter 1: Subjective Figures of the Crisis ... - Negri in English

judges as political when they disagree with their views and laud
their wisdom and independence when they agree. Even in the
rare instances when the judiciaries act in a progressive direction,
for example, to force the racial integration of schools or protect
voting rights of minorities or workers' rights to organize, their
interventions take an authoritarian form and effectively usurp
the power of parliamentary' and representative bodies, resulting
ultimately in all kinds of disasters.
Our inclination is not to seek ways to make the judiciary'
truly independent but rather to admit that certain functions of
the judiciary' are inevitably political and discover how these can
be adequately reconfigured on the political terrain. We are not
thinking here of the tasks of administering civil and criminal law.
In these domains judges and juries must be as independent as
possible from partisan pressures, and here indeed one would
have to embark on the challenging task of eliminating the
political character of law. We want to focus instead on some of
the constitutional functions of the judiciary.
One central constitutional function of the judiciary is to
provide checks and balances on the government. The ability to
check, though, requires difference. When the members of the
judiciary are not substantially different from those of the other
two branches, that branch can provide only weak mechanisms to
check the others. The primary difference currently provided by
the judiciary, in fact, is temporal, since they are not subject to
periodic election, and this generally has the effect of creating
stability through not so much balance but inertia. It seems to us
that if a constituent legislative power were created according to
federal and participator}' principles that extend decision making
throughout society, then it would provide a much more
substantial field of differences. In other words, in an open and
constituent assembly structure, diverse and conflicting forces
serve to check one another, creating a dynamic balance. One
might worry that in such a configuration the position of the
judiciary as a "third" power, external to the others, has been lost
and swallowed into the one legislative-executive governance
structure. The differences among those who participate in the
constituent process, however, and the externality of each to the
others is far greater and thus more effective than a separate